done maliciously, tending to bring religion into contempt, may be punished at common law, and the Christian Sabbath, as one of the institutions of that religion, may be protected from desecration by such laws as the legislature, in their wisdom, may deem necessary to secure to the community the privilege of undisturbed worship, and to the day itself that outward respect and observance which may be deemed essential to the peace and good order of society, and to preserve religion and its ordinances from open reviling and contempt; and this not as a duty to God, but as a duty to society and to the state. With us the Sabbath as a civil institution is older than the government," and it is subject to governmental regulation. "In this state the Sabbath exists as a day of rest by the common law, and without the necessity of legislative action to establish it; and all that the legislature attempt to do in the 'Sabbath laws' is to regulate its observance. The Christian Sabbath is, then, one of the civil institutions of the state, and to which the business and duties of life are, by the common law, made to conform and adapt themselves. Offenses against it are not punishable as sins against God, but as injurious to and having a malignant influence on society." The statute is clearly within the Constitution, which declares "that the liberty of conscience secured by it shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. The legislature have declared that Sunday theatres are of this character, and come within the description of acts and practices which are not protected by the Constitution, and they are the sole judges. The act is clearly constitutional, as dealing with and having respect to the Sabbath as a civil and political institution, and not affecting to interfere with religious belief or worship, faith or practice."

The same statute was again under judicial consideration in Neuendorff v. Duryca (1877) 69 N. Y. 557, and it was again sustained. The Lindenmuller Case was cited as declaring the law of the state on this subject, the court of appeals saying that "it is there held with great force of argument, that the Christian Sunday may be protected from desecration by such laws as the legislature in its wisdom may deem necessary; and that it is the sole judge of the acts proper to be prohibited with a view to the public peace;" and that in that case the subject was exhausted, “and the true ground of judgment there occupied, and all the arguments upon this branch of the case in the present state of civil society in this country are there advanced and elaborated," and it was needless to repeat them.

The effect of the qualifying clause of the section—“but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of this state"-was considered in People v. Pierson (1903) 176 N. Y. 201, 63 L. R. A. 187, 98 Am. St. Rep. 666, 68 N. E. 243. The defendant was indicted and convicted under § 288 of the Penal Code for neglecting to provide medical attendance for a minor child, who, it was alleged, died in consequence of such neglect. The defendant said "his reason for not calling a physician was that he believed in Divine healing, which could be accomplished by prayer. He stated that he belonged to the Christian Catholic Church, of Chicago, that he did not believe in physicians, and his religious faith led him to believe that the child would get well by prayer. He believed in disease, but believed that religion was a cure of disease." The conviction was sustained on the ground that the legislature, by positive statute, had imposed on parents the duty of providing medical attendance for

their children; that a violation of this duty was an offense punishable by law under the statute, and that the court could not consider the defendant's religious belief as an excuse or defense. "The peace and safety of the state involves the protection of the lives and health of its children, as well as the obedience to its laws. Full and free enjoyment of religious profession and worship is guaranteed, but acts which are not worship are not." Parental neglect to provide medical attendance for children is “a public wrong which the state, under its police powers, may prevent. Sitting as a court of law for the purpose of construing and determining the meaning of statutes, we have nothing to do with these variances in religious beliefs, and have no power to determine which is correct. We place no limitations upon the power of the mind over the body, the power of faith to dispel disease, or the power of the Supreme Being to heal the sick. We merely declare the law as given us by the legislature."

§ 4. [When writ of habeas corpus not to be suspended.]– The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension.

[Const. 1821, art. 7, 6; 1846, art. 1, § 4. This subject is considered in the article on the Bill of Rights, in the chapter on the Convention of 1821.]

§ 5. [Excessive bail, fines, and punishments prohibited; rights of witness.]- Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained.

[Const. 1846, art. 1, § 5.]

A sketch of this section, omitting the last clause, will

VOL. IV. CONST. HIST.-5.

be found in the article on the Bill of Rights in the chapter on the Constitution of 1821. It has there been noted that the first three clauses were included in the English Declaration of Right of 1689, were enacted by the legislature in the act relating to the rights of citizens, passed January 26, 1787, and were included in the ten amendments to the Federal Constitution proposed to the legislatures by Congress in 1789, and afterwards duly ratified. These clauses were not included in the first and second state Constitutions, but were incorporated in the Bill of Rights by the Convention of 1846, which added the clause relating to the detention of witnesses.

Cruel and unusual punishments.-In Barker v. People (1824) 3 Cow. 686, 15 Am. Dec. 322, the court considered the subject of cruel and unusual punishments, which had been incorporated in the 8th Amendment to the Federal Constitution, but which was not then included in the state Constitution. The court deemed the Federal constitutional provision inapplicable to strictly state legislation, and therefore the act of 1815, chap. I, which excluded from office persons convicted of dueling, was not subject to condemnation as inflicting a cruel and unusual punishment. Considering the subject further the court say that "the power of the legislature in the punishment of crimes is not a special grant or a limited authority to do any particular thing, or to act in any particular manner. It is a part of the 'legislative power of this state.' . . . It is the sovereign power of a state to maintain social order by laws for the due punishment of crimes." The power of the state over crimes is committed to the legislature without definition or description of crimes or punishments, and the legislature has unlimited discretion to define and punish crime, except as restricted in a few cases by the Constitution itself. The punishment imposed by the statute against dueling was held to be not unconstitutional.

Justice Rumsey, in Re Bayard (1881) 25 Hun, 546, discussing the prohibition against cruel and unusual punishments, said it had received little judicial attention, for the obvious reason that the question would probably not often arise, in view of the fact that punishments must first be declared by the legislature, which usually represents the moral ideas of the people, but that text writers seemed to

understand the phrase as "prohibiting any cruel or degrading punishment not known to the common law, and prohibiting also those degrading punishments which, in any state, had become obsolete when its existing Constitution was adopted, and punishments so disproportioned to the offense as to shock the sense of the community." The court sustained as constitutional the act of 1880, chap. 456, which imposed in the city of Cohoes a punishment for petit larceny different from that imposed by law in other parts of the state. The punishment, though different, was not "cruel and unusual," within the meaning of the Constitution. The legislature has power, in its discretion, to increase or change punishments in different localities, to meet special emergencies. The Sunday barbering law of 1895, chap. 826, discriminated as to offenses in different parts of the state. This act was held constitutional in People v. Havnor (1896) 149 N. Y. 195, 31 L. R. A. 689, 52 Am. St. Rep. 707, 43 N. E. 541, but the question that it violated the prohibition against cruel and unusual punishments does not seem to have been raised. The Ives pool law of 1884 contains a similar discrimination. This act has also been sustained as constitutional. People v. Stedeker (1902) 75 App. Div. 449, 78 N. Y. Supp. 316.

This section was not violated by the act of 1884, chap. 153, relating to the collection of taxes in Lewis county, which prohibited owners of land in default for taxes from peeling bark or cutting timber thereon before the payment of the taxes, under a penalty of $500. Prentice v. Weston (1888) 47 Hun, 121, affirmed, but without reference to this question, in (1888) 111 N. Y. 460, 18 N. E. 720. The subject of cruel and unusual punishments was further considered in People ex rel. Kemmler v. Durston (1890) 119 N. Y. 569, 7 L. R. A. 715, 16 Am. St. Rep. 859, 24 N. E. 6, in which the court sustained the act of 1888, chap. 489, amending the Code of Criminal Procedure in relation to the infliction of the death penalty by substituting electrocution for the method then in use. Judge O'Brien refers to the origin of the provision in the English Declaration of Right already noted, and says: "When the statute referred to was enacted in England it was not intended as a check upon the power of Parliament to prescribe such punishment for crime as it considered proper. Its enactment did not change any law then existing, nor did it mitigate the harshness of criminal punishments in that country; as is shown by the fact that for more than half a century after it appeared on the statute book, a long catalogue of offenses were punishable by death, many of which were not visited with that extreme penalty before the Bill of Rights was passed.